RAJA RAM Vs. CHAIN SINGH

JUDGEMENT

(1.) The appellant has filed this appeal being aggrieved by the judgment and decree of the First Appellate Court passed in First Appeal No. 5 A/95 dated 24.8.1998 wherein the judgment and decree dated 28.6.1994 passed in civil suit No. 28 A/91 by the Fifth Civil Judge Class -II. Sehore has been set aside.

(2.) It is submitted that the appellant -plaintiff had filed a suit claiming easementary rights against the defendants as they had constructed a wall on the open land between the plaintiff's house and Ramdeo Mandir as a result of which the easementary rights of the appellant to air and light as well as of passage was obstructed. It is alleged that the appellant -plaintiff had been using the right to way for the last 100 years which has now been obstructed by the impugned construction of the wall.

(3.) I have heard the learned counsel for the appellant at length. From perusal of the impugned judgment it is clear that the First Appellate Court has relied upon the report of the Commissioner himself and his statement as well as the statement of other withnesses namely; D. W -2 Sawai Singh and others to record a finding to the effect that the impugned wall constructed by the respondents is 6 ft. away from the appellant's wall; that there is apassage of about 5 ft. 6" between the impugned wall the appellant's house; that the appellant has a right to way and access available to him; that the appellant has shifted to a newly constructed house about 20 years back and is not using or residing in the house in question for the last 4 to 6 years and on that ground has reversed the judgment and decree of the trial Court.